Cross-examination commonly forms a large portion of the evidence in a contested criminal matter. It occurs when one party or their lawyer challenges and attempts to undermine the evidence of a witness called by the other side. This may be achieved by exposing weaknesses in the evidence of witnesses, or by suggesting that a witness is mistaken or is being dishonest. Cross-examination of a witness occurs after the witness has completed giving their evidence during examination-in-chief.
A party who is cross-examining a witness is aiming to highlight deficiencies in the other party’s evidence, to expose inconsistencies in testimonies and to elicit facts and concessions that assist the cross-examining party’s case. The common law places limits on what can be asked during cross-examination as does the uniform Evidence Acts and other legislation. There are also laws that restrict self-represented defendants from cross-examining certain classes of witnesses. These laws exist to balance the rights of witnesses and the rights of defendants to receive a fair trial.
Inadmissible cross-examination questions
Cross-examination must be done in a way that does not adduce inadmissible evidence. If a party thinks that a cross-examination question asked by the other party invites inadmissible evidence, they may object to the question being asked and the judge or magistrate may disallow the question or allow the cross-examining party to proceed. Sometimes it may be unclear whether or not a question should be allowed and the court may require submissions from both parties as to why the question should or should not be allowed.
Parties are not allowed to ask cross-examination questions which invite inadmissible hearsay evidence from a witness. Inadmissible hearsay evidence is where someone gives evidence of what someone else said, when this evidence is given in order to establish the truth of the statement made by the other person. However, it is not inadmissible hearsay to give evidence of what someone said, for another purpose.
Questions that are not relevant to the proceeding are not allowed in cross-examination. If a party wishes to ask cross-examination questions whose relevance to the proceeding is not obvious, they will be required to explain the relevance of the questions to the court and persuade it to allow them to be asked.
Witnesses must not be asked to give an opinion that they are not qualified to give. For example, if a witness is a layperson, parties will not be allowed to ask them to give a medical opinion that is outside of common knowledge. A witness is only qualified to give such an opinion if they are an expert in the field with verifiable qualifications and experience.
It is, however, permissible to ask a witness who is a layperson to give an opinion on something that is considered common knowledge – such as how old someone appeared to be or how fast a vehicle was moving.
After an expert witness has given evidence in chief, they may then be cross-examined. This may include questions about their qualifications and experience as well as how they arrived at their conclusions. If other expert opinions exist that contradict the expert opinion that has been given, these opinions may be put to the expert witness so that he or she can comment on them.
When a defendant represents themselves in a contested criminal matter, they personally must cross-examine prosecution witnesses. Every state and territory except Tasmania has now passed legislation restricting cross-examination by a self-represented defendant in certain matters. In Western Australia, the court can prohibit personal cross-examination of certain types of witnesses. Other jurisdictions have prohibited the personal cross-examination of victims of sexual offences entirely. In some jurisdictions, this prohibition also extends to other types of witnesses.
Improper cross-examination questions
Cross-examination questions should not be asked if they are:
- Misleading or confusing;
- Harassing, intimidating, humiliating or offensive;
- Belittling, insulting or inappropriate;
- Based on a stereotype, such as age, gender or race.
In some jurisdictions, legislation has been passed that imposes a positive duty on courts to disallow questions that fall into the above categories.
How to approach cross-examination
Leading questions are permitted in cross-examination. In fact, leading questions are generally considered to be more effective than open-ended questions as they keep the witness tightly controlled and allow only brief answers.
Open-ended questions, such as “Why did you do that?” should not be asked because they give witnesses too much freedom to explain themselves, which may damage the party’s case.
If you are representing yourself, make sure that you prepare your cross-examination carefully. Work out exactly what you need to get each witness to concede and the best questions to ask to achieve this. Try to word your cross-examination questions in a way that minimises the chance of objections from the other party because it is better not to have your cross-examination interrupted.
Once you have obtained the answers you need from a witness, stop.
If you need legal advice or representation in a criminal matter or any other legal matter please contact Armstrong Legal.